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The election on November 5th is a very crucial
election. The entire existence of our constitutional
republic hangs in the balance. We have suffered a half
century of activist/liberal court decisions that seriously
threaten to undermine our Rule of Law.

Activist judges have been advancing a liberal agenda
that opposes religious values, conventional morality, the
separation of powers, our structure of federalism, and
even the right of American citizens to govern ourselves.
The federal courts have been replacing our constitutional
system with what we call the Imperial Judiciary.

The U.S. Constitution gives "we the people" the
power to reverse this course by electing a U.S. Senate that
will confirm the good judges nominated by President
George W. Bush. He has done his job by nominating
judges who respect the Constitution, but the Daschle-Leahy Democrats, who control the U.S. Senate, have
refused to confirm them, or even to allow the Senate to
vote on most of them.

Bill Clinton appointed almost half of all federal
judges now serving, and federal judges serve for life. In
addition to the 373 Clinton-appointed judges, federal
judges appointed by Presidents Jimmy Carter and Lyndon
Johnson are still deciding cases.

The federal courts today are precariously balanced
between activists and constitutionalists. The election on
November 5th is our one big chance to curb the power of
activist judges and restore balance to the courts.

Just this year, we saw a stunning example of how off-course the Imperial Judiciary has gone when the Ninth
Circuit U.S. Court of Appeals ruled that it is unconstitutional to recite the Pledge of Allegiance in public school.
The atheists probably thought that after their string of
court victories banning prayer and the Ten Commandments, the time was ripe to get rid of God in the Pledge of
Allegiance. An activist judge gave them the decision they
wanted.

The Pledge of Allegiance decision may turn out to
be very influential, but not in the way the judge planned
it. This outrageous decision should galvanize Americans
to call a halt to the damage that activist judges have been
inflicting on us for decades.

Let's remember how the Pledge of Allegiance issue
helped to defeat Michael Dukakis and elect the elder
George Bush as President of the United States in 1988.
Dukakis was a typical liberal from Massachusetts who
shrank from flag-waving symbolism. He had vetoed a law
to require public school teachers to lead the Pledge of
Allegiance every morning. George Bush made this a
major campaign issue and rubbed Dukakis's nose in his
own stupidity. The Pledge of Allegiance became one of
the issues that elected Bush.

The American people care about the Pledge of
Allegiance. A Newsweek poll found that a phenomenal
87% of Americans support keeping the words "under
God" in the Pledge. This is a great issue for Senate
candidates to talk about. We want to vote for Senators
who will stand tall for the Pledge of Allegiance and who
will confirm judicial nominees who believe that "under
God" should remain in the Pledge.

When Justice Clarence Thomas, the Court's strongest
voice in behalf of constitutional government, spoke to
Eagle Forum's annual conference several years ago, he
explained that when a case is presented to the court,
judges can make their decisions in one of two ways. They
can look to the United States Constitution and see
whether it authorizes or forbids the disputed action, or the
judges can impose their own social views on us dressed
up with self-serving jargon. Unfortunately, too many
judges prefer the latter, rather than accepting the authority
of the Constitution. Some activist liberal judges seem to
think they are free to write their own views into the law.

Someone once asked Dwight Eisenhower if he had
made any mistakes as President that he later regretted. Ike
replied: Yes, two, and they're both on the Supreme Court.
Presidents Richard Nixon, Ronald Reagan and the first
George Bush all made similar mistakes. In fact, seven of
the nine current Supreme Court Justices were appointed by
Republican Presidents, and a Nixon-appointed judge wrote
the infamous Pledge of Allegiance decision this year.

So far, President George W. Bush has a good record of
judicial appointments. The problem is that the Democratic
Senate won't confirm them.

"All" legislative powers are vested in the Congress,
according to the U.S. Constitution. That means no legislative power is granted to the courts. Yet, over the past 50
years, judges have become increasingly activist, writing
their own ideas and attitudes into the law.

Some of our most far-reaching social, economic and
political decisions have been made by judges rather than by
our elected representatives. These include decisions about
criminal procedures, prayer and the Ten Commandments in
public schools, internal security, pornography, forced
busing, racial preferences and quotas, term limits, abortion,
and election procedures.

The federal courts have invented new "rights" such as
the right to abortion and welfare payments. The federal
courts have arbitrarily overturned the votes of the people in
California, Colorado, Arizona and Washington State who
had the old-fashioned belief that they could exercise self-government. The federal courts have set themselves up as
a super-legislature and grabbed authority to micromanage
schools, prisons, hiring standards, and legislative reapportionment.

While the American people typically have the
opportunity to correct a bad election result four years
later, a bad legal precedent may last forever.

The trouble with some judges is that once they are
appointed to the federal judiciary, they seem to think they
have been anointed to rule over us lesser mortals. They just
write their own opinions into the law. Some of these
activist judges are very arrogant about saying this.

Justice William J. Brennan in a 1982 speech revealed
the mindset of these liberal activist judges. He praised
what he called "the evolution of constitutional doctrine."
Brennan said that in previous times, "the function of law
was to formalize and preserve (accumulated) wisdom," but
"over the past 40 years Law has come alive as a living
process responsive to changing human needs." He bragged
that the law has become "a moving consensus." Brennan
added, "our constitutional guarantees and the Bill of Rights
are tissue paper bastions if they fail to transcend the printed
page."

Justice Brennan made that all up. There is nothing in
the U.S. Constitution about evolution, a living process,
changing needs, or transcending the printed page.

A striking current example of how activist judges
engage in the "evolution" of the so-called "living" Constitution was provided by the U.S. Supreme Court in June this
year. In Atkins v Virginia, Justice John Paul Stevens
rewrote the Eighth Amendment to outlaw capital punishment for those with low I.Q. scores. There isn't any basis
in the Constitution for his decision. Justice Stevens based
it on what he called "a national consensus," for which he
cited "polling data." Stevens was appointed by the so-called moderate Republican, President Gerald Ford.

Justice Stevens apparently thinks that our laws can be
made by public opinion polls instead of by our elected
representatives. Justice Scalia properly rebuked him,
retorting that the Stevens decision really was based on
"nothing but the personal views" of the Justices.

While Republican Presidents have made major mistakes in the past, the November 2002 election offers a
clearcut choice on the issue of the Imperial Judiciary. The
Democratic Senate is holding up President Bush's nominees because Senators Tom Daschle and Patrick Leahy
demand Clinton-style judges who believe in constitutional
"evolution." Most Americans, on the other hand, want
judges who rely on the United States Constitution as their
point of reference, and we desperately need Republican
Senators who will confirm Bush's nominees.

The Supreme Court's effect on what is taught in the
public schools, starting with expelling prayer and Bible
reading in 1962 and 1963, has been disastrous. An 1892
Supreme Court decision clearly spelled out that "This is a
religious nation. . . ." (Church of the Holy Trinity v. United
States). Even FDR-appointed liberal Supreme Court
Justice William O. Douglas wrote as late as 1952 that "We
are a religious people whose institutions presuppose a
Supreme Being" (Zorach v. Clauson). But since 1962 the
federal courts seem determined to eliminate every mention
of religion from the schoolhouse.

The good people in Kentucky raised private funds to
have a simplified version of the Ten Commandments nicely
framed and placed in every classroom in Kentucky, but in
1980 the U.S. Supreme Court banned the Ten Commandments from the public school classroom (Stone v. Graham).
(A copy of Kentucky's framed Ten Commandments is
hanging at Eagle Forum Education Center in St. Louis.) By
the year 2000, the Court even banned prayers before
football games (Santa Fe Indep. Sch. Dist. v. Doe).

Out went the Ten Commandments, in came condoms.
Out went the Cross and pictures of Christ, in came drawings
of apes pretending to walk like humans. Out went Adam
and Eve, in came Heather Has Two Mommies. Out went
Easter, in came Earth Day. Out went teachings against
homosexuality, in came teachings in favor of homosexuality.

There are many examples of Supreme Court Justices
writing their own opinions into the Constitution. In United
States v. Virginia (1996), the Supreme Court ordered
women admitted to Virginia Military Institute, which had
been constitutionally all-male for 150 years. Without any
authority from the Constitution, Clinton-appointed Justice
Ruth Bader Ginsburg wrote her radical feminism into the
law, and even smeared as closed minded those who believe
there are inherent differences between men and women.

In Romer v. Evans (1996), the Supreme Court overturned the majority of the people of Colorado who, by
statewide referendum, had prohibited localities from
granting special status to homosexuals. Without any
authority from the Constitution or citation of any applicable
legal precedent, the Court ruled that Colorado's Amendment 2 was totally without a rational basis and was "born of
animosity" toward homosexuals. It would be more accurate
to say that the Supreme Court's own decision was without
a constitutional basis and was born of animosity toward
traditional moral standards and the people who hold them
sacred.

Supreme Court arrogance reached new heights in
Planned Parenthood v. Casey (1992), when the Court
linked its own legitimacy with abortion in a circular
argument. Although Roe v. Wade (1973) had no basis in
the Constitution, the Court in Casey urged that Roe be cast
in stone lest "the Court's legitimacy be undermined." In
other words, in order to maintain the Court's legitimacy, we
are told we must not criticize an illegitimate decision!

Monkey see, monkey do. Following the lead of the
Supreme Court, some lower federal courts manifested their
disdain for the popular will by arrogantly overturning the
wishes of the majority of the voters expressed in statewide
referenda. A single Jimmy Carter-appointed federal judge
(Mariana Pfaelzer) in 1994 nullified California Proposition
187, which would have prohibited giving taxpayer benefits
to illegal aliens. Proposition 187 received five million
votes, but it was nullified by only one federal judge and
kept permanently inoperative.

Another federal judge ruled that Penthouse magazine
and other sexually explicit magazines and videos have a
First Amendment right to be available in subsidized stores
on military bases. By the ruling in General Media Communications v. Perry (1997), the military was enjoined from
obeying the Military Honor and Decency Act of 1996,
which forbade such materials on military bases. Fortunately, the Second Circuit U.S. Court of Appeals reversed
this decision, declaring this Act a reasonable, viewpoint-neutral regulation of speech in a non-public forum.

In a 2-to-1 ruling in Karen Finley et al. v. National
Endowment for the Arts (1996), the Ninth Circuit U.S.
Court of Appeals held that it is unconstitutional for a
government agency to consider "decency and respect" for
American values when it doles out the taxpayers' money.
The winners in this case were Karen Finley, the woman
who became famous by parading on stage dressed in
nothing but a layer of chocolate, three others whose nude
performances centered on homosexual themes, plus, of
course, the American Civil Liberties Union. The losers
were the American taxpayers. The Supreme Court reversed
this decision in 1998, too late to make a difference.

It was a Lyndon Johnson-appointed judge, still on the
court, who in 2002 ordered the forcible drugging of a
prisoner who has never been tried or convicted, but has
been kept in prison for nearly five years, longer than his
sentence would have been if he had been convicted (United
States v. Sell). This decision is now on appeal to the
Supreme Court.

The federal judges appointed by Clinton, Carter and
Johnson are the biggest threat to constitutional self government today. These activist judges have been writing liberal
opinions into the law, usurping legislative functions, and
depriving Americans of our rights of self-government.
They will be able to continue doing that for the rest of their
lives unless we can balance the courts with judges appointed by President George W. Bush.

The most important issue in the election on November 5th is whether or not we elect enough U.S. Senators to
confirm constitutionalist judges. Senators should ascertain
a prospective judge's commitment to a philosophy of
fidelity to the Constitution by requiring him to state
whether he believes that "under God" should be retained in
the Pledge of Allegiance. It is the Senate's duty to protect
America from judicial usurpation and to restore our constitutional balance of powers among the three branches of our
government. Since law-abiding citizens can't hold the life-tenured radical judges accountable, grassroots groups
everywhere should hold accountable every Senator who
fails to act to reign in the Imperial Judiciary.

The United States Constitution contains within it other
remedies to solve our constitutional problems. The federal
courts have unconstitutionally grabbed entirely too much
power and it's the duty of Congress to use its constitutional
powers to curb the imperial judiciary. Congress should
limit the jurisdiction of the federal courts, as authorized in
Article III of the U.S. Constitution.

For example, Congress should prohibit the federal
courts from ordering any government at any level to raise
taxes under any circumstance. One of the Supreme Court's
most arrogant decisions, Missouri v. Jenkins (1990), was
the federal court's imposition of increased property taxes in
Kansas City to pay for the world's most extravagant public
school facilities. The Court simply ignored one of the
Constitution's clearest directives, "All Bills for raising
Revenue shall originate in the House of Representatives"
(Article I, Section 7), and the words of James Madison in
Federalist No. 48: "The legislative branch alone has access
to the pockets of the people." (Incidentally, it is now
abundantly clear that the court-ordered billion dollars spent
to build the most expensive school system in the world has
totally failed to improve test scores.)

Congress should pass Rep. Todd Akin's (R-MO) bill
to withdraw jurisdiction from the courts over cases regarding the Pledge of Allegiance to the Flag. This is a great issue on which Congress should step up to the plate,
exercise its Article III authority, and regulate the jurisdiction of the federal courts. Ask your Member of Congress to
co-sponsor the Akin bill, H.R. 5064.

Congress should take away the power of a single
federal judge to issue an injunction to overturn a referendum and prevent enforcement of the voters' wishes during
the years that a case winds its way through the court system.
It is an offense to the Rule of Law that a single federal
judge has again and again nullified initiatives passed by a
majority of the voters.

Congress should prohibit federal judges from trying to
micromanage public schools, prisons, or mental hospitals.
Congress should stop the federalization of crimes.
Whenever Congress enacts a new federal criminal statute,
it enlarges the power and authority of the federal courts and
provides more opportunities for judicial activism. Congress has created more than 3,000 federal crimes, many of
them redundant with state laws.

According to former Attorney General Ed Meese,
federalizing crime contradicts constitutional principles.
The U.S. Constitution gave the Federal Government
jurisdiction over only three crimes: treason, counterfeiting,
and piracy on the high seas, and left responsibility for
criminal law in the domain of the states. General Meese
accurately says that federalizing crime increases "the
potential for an oppressive and burdensome federal police
state."

The federal courts have fundamentally altered our
Separation of Powers and effectively changed the definition of "the supreme law of the land" from "this Constitution, and the Laws of the United States which shall be made
in Pursuance thereof" (Article VI) and substituted "whatever a federal judge decides this week."

This situation is intolerable, and it is the duty of
Congress to use its constitutional powers to restore the
balance of power among the three branches. The only way
to do this is to elect a Republican Congress and especially
a Republican Senate on November 5th.

If we truly believe in self-government, grassroots
Americans must take a major role in reforming the Imperial
Judiciary. Private citizens should take an interest in court
decisions, discuss them, comment on them, and ask
television and radio talk shows to include them in their
programming.

One of these days, and it could be tomorrow or the day
after, a vacancy on the Supreme Court will occur. We will
then face the Mother of all Battles. The result will be as
important to America's future as who was elected President. You need to be informed and engaged in the battle,
and you need to be part of the action so that we don't have
a repeat of what happened when Bush's splendid nominees,
Charles Pickering and Priscilla Owen, were rejected on a
straight party-line partisan vote in committee without
allowing the full Senate to vote.

Since David Horowitz became disillusioned with the
radical goals of the left, he has been trying to teach Republicans and conservatives how to combat the left's tactics. He
asserts that "the left-wing activists who now make up the
core of the Democratic Party understand the nature of
political war in our democracy, and Republicans quite
simply do not."

Horowitz is exasperated with Republican Party ineptitude. "The Republican Party," he writes, "claims to be the
party of personal responsibility, yet it has become a party
that takes no responsibility for the predicaments in which it
finds itself. Instead, Republicans blame bias in the media,
or the liar [Clinton] in the White House, or their unprincipled opponents, or even the immorality of the American
people to explain their defeats."

His warning is stern: "In political warfare, if only one
side is shooting, the other side will soon be dead." Republicans should study Horowitz's book The Art of Political
War in order to gird for the next judicial nomination battle
that will surely come.

In the granddaddy document of limited government,
the Magna Carta signed at Runnymede in 1215, King John
promised, "We will appoint as justices, constables, sheriffs,
or other officials, only men that know the law of the realm
and are minded to keep it well."

You and I expect at least as much from our President
and Senators as our forefathers got from King John. It's
time for grassroots Americans to wake up and realize how
the federal courts have grabbed powers that violate the
Separation of Powers and turned themselves into an
Imperial Judiciary. Tell your Senators and Congressmen
you want them to get moving immediately with a coordinated plan to curb the Imperial Judiciary.

November 5th is our big opportunity to restore our
constitutional form of government by electing Senators
who will confirm good constitutionalist judges and Representatives who will curb the power of the federal courts.

Phyllis Schlafly, B.A., M.A., J.D., is a member of the Bar in
Missouri, Illinois, the District of Columbia, and the U.S.
Supreme Court.